Lax v. Fourteenth Street Store

49 Misc. 627, 97 N.Y.S. 396

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1906
• Status: Published

Opinion

Scott, J.

The judgment must be reversed because the court below was without jurisdiction to render any judgment at all. The attorneys for the parties agreed to and signed a statement of facts upon which the case was submitted, there being no written pleadings and no evidence taken. Section 241 of the Municipal Court Act provides for the submission of a controversy upon an agreed statement of facts, but also provides that “ such statement must be accompanied with the affidavit of one or more of the parties to the effect that the controversy is real and that the submission is made in good faith for the purpose of determining the rights of the parties." No such affidavit appears in the return. In its absence the justice should not have rendered any judgment, for there was nothing before him to show that he was dealing with a real controversy.

The judgment will therefore be reversed, but without costs to either party and without direction for a new trial.

Blanchakd and Dowling, 15%, concur»

Judgment reversed, without costs to either party and without direction for new trial.